Lize de la Harpe – Senior Legal Advisor at Sanlam

 

 

Introduction

 

President Cyril Ramaphosa on 9 May 2024 signed the Divorce Amendment Bill into law, which amends the Divorce Act, 1979 to recognise Muslim marriages.

 

 

Background

 

It is a well-known fact that marriages concluded in accordance with the tenets of the Islamic faith was previously not accorded recognition as valid marriages in South Africa.  Because some customary marriages permit polygamy, they were also treated as contrary to public policy prior to 1998.

 

The non-recognition of Muslim marriages in civil law meant that Muslim women were deprived of the proprietary remedies the Divorce Act is designed to guarantee.

 

The amendments to the Divorce Act comes after the Constitutional Court judgment in the matter of Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022) handed down in June 2022.

 

In this matter, the Constitution Court (CC) found that the Divorce Act (as well as the Marriages Act, 1961) was unconstitutional in that it failed to recognise Muslim marriages which have not been registered as civil marriages, as valid marriages for all purposes in South Africa, and to regulate the consequences of such recognition.

 

Specifically with regards to the Divorce Act, the CC held:

 

1. Section 6 failed to provide for mechanisms to safeguard the welfare of minor or dependent children born of Muslim marriages, at the time of dissolution of the Muslim marriage in the same or similar manner as it provides for mechanisms to safeguard the welfare of minor or dependent children born of other marriages that are dissolved;

 

2. Section 7(3) failed to provide for the redistribution of assets on the dissolution of a Muslim marriage, when such redistribution would be just; and

 

3. Section 9(1) failed to provide for the forfeiture of the patrimonial benefits of a Muslim marriage at the time of its dissolution in the same or similar terms as it does in respect of other marriages that are dissolved.

 

The President and the Cabinet, along with Parliament, had 24 months from the date of the judgement to remedy the defects to ensure the recognition of Muslim marriages as valid and to regulate the consequences arising from such recognition.

 

The Divorce Amendment Bill, 2022 was first published for public comment in November 2022. It as approved by the National Council of Provinces in February 2024 where after it was referred to the President for assent. The President signed the bill into law on 9 May 2024.

 

 

The changes

 

The amendments can be summarised as follows:

 

• the insertion a definition of a Muslim marriage (being a marriage entered into or concluded in accordance with the tenets of Islam);

 

• provision has been made for the protection and to safeguard the interests of dependent and minor children of a Muslim marriage; and

 

• now provides for the redistribution of assets on the dissolution of a Muslim marriage as well as the forfeiture of patrimonial benefits of a Muslim marriage.

 

 

Conclusion

 

This development was long awaited and is much welcomed. The previous non-recognition of Muslim marriages was not only an infringement of the right to dignity, equality, access to courts but also infringed upon the rights of children under the Constitution.

 

 

ENDS